The WA Govt is challenging a native title claim over Perth. (File photo)
Last Update: Tuesday, October 3, 2006. 11:13am (AEST)

Former judge questions burden of proof in native title cases

The recently retired Federal Court judge who ruled in favour of the Noongar people in their claim over Perth says states are sometimes too demanding in the burden of evidence they require for native title cases.

The Western Australian Government is appealing against his ruling in the Noongar case.

The Government is particularly concerned about whether the Noongar people have provided enough proof that their culture and connection to the land has been maintained throughout history.

Former Justice Murray Wilcox says in native title cases, states have a right to ask for proof but sometimes require too much detail.

"The fact is it is almost impossible for people to prove by documentary evidence a genealogical descent going back over 200 years," he said.

"Aboriginals did not have written systems at the time of settlement, and I'm not sure that that is sufficiently taken into account in the demands that are made on Aboriginal communities."

Federal Attorney-General Philip Ruddock has said he is concerned access to beaches and parks in the claim area could be restricted.

Mr Wilcox says the rights he granted to the Noongar people did not include any exclusive access.

"That means that there would be no right to deny access by other people to land that is covered by the determination if one's eventually made," he said.

"There has been I think a lot of misunderstanding and sadly there has been some politicisation over the years, but I think more and more people now are recognising the reality that native title isn't a threat to people's backyards, doesn't take away freehold land or in fact the rights of most lease holders."

He says he has generally been encouraged by the maturity to the discussion about the Noongar ruling.